Isaacsen v. Bisignano

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 18 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

AARON JON ISAACSEN, No. 25-4092 D.C. No. Plaintiff - Appellant, 3:24-cv-06030-DWC v. MEMORANDUM* FRANK BISIGNANO, Commissioner of Social Security

Appellee.

Appeal from the United States District Court for the Western District of Washington David W. Christel, Magistrate Judge, Presiding

Submitted June 12, 2026** Seattle, Washington

Before: W. FLETCHER and M. SMITH, Circuit Judges, and HINDERAKER, District Judge.***

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable John Charles Hinderaker, United States District Judge for the District of Arizona, sitting by designation. Aaron J. Isaacsen appeals the district court’s judgment affirming the

Commissioner of the Social Security Administration’s denial of his application for

supplemental security income disability benefits under Title XVI of the Social

Security Act. We have jurisdiction under 28 U.S.C. § 1291.

We review de novo a district court’s judgment upholding an administrative

law judge’s (“ALJ”) denial of social security benefits. Bray v. Comm’r of Soc. Sec.

Admin., 554 F.3d 1219, 1222 (9th Cir. 2009). The Court disturbs the

Commissioner’s decision “only if it is not supported by substantial evidence or is

based on legal error.” Smartt v. Kijakazi, 53 F.4th 489, 494 (9th Cir. 2022)

(quoting Bray, 554 F.3d at 1222).

At step four of the sequential evaluation process, the ALJ included in

Plaintiff’s residual functional capacity (“RFC”) the need for a five-minute break

every hour due to his monocular eye fatigue and to allow him to apply eye drops.

Considering this RFC, the ALJ found Plaintiff could perform jobs existing in

significant numbers in the national economy, including cashier, routing clerk, and

collator operator—each classified as unskilled jobs. Plaintiff argues this finding

was in error because Plaintiff’s need for hourly five-minute breaks (1) prevents

him from meeting the requirements of unskilled work listed in the Social Security

Administration’s Program Operations Manual System (“POMS”)

DI 25020.010(B)(3)(d) and (2) requires a “reasonable accommodation” under the

2 25-4092 Americans with Disabilities Act (“ADA”) and, accordingly, should not have been

considered in the ALJ’s step-five determination.

The POMS is not binding authority on an ALJ. Shaibi v. Berryhill, 883 F.3d

1102, 1107 (9th Cir. 2017) (citing Lockwood v. Comm’r of Soc. Sec. Admin.,

616 F.3d 1068, 1073 (9th Cir. 2010)). Accordingly, Plaintiff’s argument that the

ALJ’s finding did not comport with the POMS does not establish legal error. In

coming to his step-five determination, the ALJ relied on a vocational expert’s

(“VE”) testimony that Plaintiff’s need for an hourly five-minute break did not

prevent him from performing the requirements of the identified jobs. See

AR 52–53 (an hourly five-minute break is “a little irregular, but not inconsistent

with . . . allowable breaks . . . for everybody”). Plaintiff does not challenge the

VE’s qualifications or testimony. Accordingly, the ALJ was entitled to rely on the

VE’s testimony in making his step-five finding, and this finding was supported by

substantial evidence. See Ford v. Saul, 950 F.3d 1141, 1160 (9th Cir. 2020)

(“Given its inherent reliability, a qualified vocational expert’s testimony as to the

number of jobs existing in the national economy that a claimant can perform is

ordinarily sufficient by itself to support an ALJ’s step-five finding.” (citation

omitted)).

Additionally, POMS DI 25020.010, which covers mental limitations, does

not apply to Plaintiff, who has only physical limitations. This section of the POMS

3 25-4092 contains a list of “[t]he basic mental demands of competitive, remunerative,

unskilled work” and provides that a “substantial loss of ability” to meet any of

those demands would justify a finding of disability. DI 25020.010(A)(3)(a), (b).

Plaintiff does not allege an inability to meet the basic mental demands of unskilled

work, only that his need for five-minute breaks prevents him from “maintain[ing]

attention for extended periods of 2-hour segments.” See DI 25020.010(B)(3)(d).

Because Plaintiff requires breaks due to a physical limitation, we will not cross-

apply this section of the POMS to a claimant to which it does not naturally pertain.

In determining whether an individual is disabled, an ALJ “does not take the

possibility of ‘reasonable accommodation’ into account.” Cleveland v. Pol’y

Mgmt. Sys. Corp., 526 U.S. 795, 803 (1999) (emphasis in original). Under the

ADA, “reasonable accommodations” are “[m]odifications or adjustments to the

work environment, or to the manner or circumstances under which the position

held or desired is customarily performed, that enable an individual with a disability

who is qualified to perform the essential functions of that position.” 29 C.F.R.

§ 1630.2(o)(1)(ii). We have previously found a “commonplace” allowance not to

be a reasonable accommodation where it was consistent with how the job was

“generally performed in the national economy.” See Loop v. Colvin, 651 F. App’x

694, 696 (9th Cir. 2016) (needing a sit/stand option did not require a reasonable

accommodation).

4 25-4092 The VE testified that hourly five-minute breaks would be “not inconsistent”

with allowable breaks for other employees. The ALJ considered this testimony in

determining that Plaintiff was able to meet the requirements of the identified jobs

with his physical abilities. See 20 C.F.R. § 404.1566(b). Because such breaks are

not a modification to the requirements of or manner under which the identified jobs

are customarily performed, they do not constitute a reasonable accommodation

under the ADA. Accordingly, the ALJ was entitled to account for these breaks at

step five, and there was no legal error.

AFFIRMED.

5 25-4092